Groups Call on 501(c)(4) Organization to Comply with Law and Stop Running Ads Using McConnell Campaign Footage

In a letter sent to the Kentucky Opportunity Coalition (KOC) and the McConnell Senate Committee ’14, Democracy 21, joined by the Campaign Legal Center, called on KOC to stop running an ad that violates the federal campaign finance laws.

The ad in question uses republished campaign footage prepared and posted on YouTube by the McConnell Senate Committee ’14.

According to Democracy 21 President Fred Wertheimer:

We believe this is a clear case of violating a statutory prohibition that prevents outside spending groups from republishing campaign materials prepared by a candidate’s campaign – in this case so called “B-Roll” footage of Senator McConnell.

The “B-Roll” scam is being used by candidate campaigns to provide Super PACs and 501(c)(4) groups with video footage to use in their ads supporting the candidate. The only problem here is that this “B-Roll” scam is illegal.

Democracy 21 and the Campaign Legal Center will do our part this year to stop outside spenders and candidates from flaunting the nation’s campaign finance laws by calling out violators and filing FEC complaints in appropriate cases. Unfortunately, the FEC is being prevented from enforcing the campaign finance laws by the three Republican Commissioners who consistently block any significant enforcement of the laws.

On March, 18, 2014, the Washington Post reported that KOC began a $1.8 million ad campaign on March 19th, just eight days after the McConnell campaign posted video footage produced by the campaign on the campaign’s YouTube account.

According to the letter from Democracy 21 and the Campaign Legal Center:

The McConnell campaign footage consisted of two-and-a-half minutes of video of Senator McConnell in several different settings. The video was silent except for a generic music track. This type of footage is commonly known as “B-roll.”

KOC took four portions of the campaign “B-roll” that had been prepared and posted by the McConnell campaign and incorporated that video into a supposedly “independent expenditure” TV ad sponsored by KOC.  Approximately 30 percent of the 30 second KOC ad consists of the footage prepared and posted on YouTube by the McConnell campaign.

The letter stated:

Federal campaign finance law provides that republication of a candidate’s campaign materials constitutes an in-kind contribution to the candidate.  The law also prohibits any corporation from making an in-kind contribution to a candidate.  2 U.S.C. § 441b(a).  Accordingly, by republishing McConnell campaign material as part of its ad, KOC, a corporation, made an impermissible in-kind contribution to the McConnell campaign in violation of the campaign finance law.

According to the letter:

There is no question that the “B-roll” prepared and posted by the McConnell campaign constitutes “campaign materials prepared by the candidate” within the meaning of the law, and that the use of such “B-roll” footage by an outside spender is a “dissemination, distribution or republication” of the campaign material.

The letter stated:

Thus, it appears quite clear that by republishing “B-roll” footage posted by the McConnell campaign in its ad, KOC violated the campaign finance law by making an impermissible corporate contribution to the McConnell campaign.  We call on KOC to stop running this ad and to refrain from running any other ad that republishes the McConnell campaign’s materials.

The letter further stated:

Furthermore, if the KOC ad containing republished McConnell campaign material was run at the “request or suggestion” of the McConnell campaign, it would constitute a coordinated expenditure that would be a violation of law not just by KOC for making an illegal in-kind contribution, but also by the McConnell campaign for “requesting or suggesting,” and receiving, the illegal in-kind contribution.  2 U.S.C. § 441a(a)(7)(B)(iii); 11 C.F.R. §§ 109.23(a); 109.21(d)(1).

The fact that the McConnell campaign posted the “B-roll” footage on the McConnell campaign YouTube account and that the footage was republished the next week by KOC in a campaign ad supporting Senator McConnell raises a serious question as to whether the posting of the footage by the McConnell campaign was itself a suggestion that the “B-roll” footage should be used for a campaign ad by KOC or by another outside spender.

An article in The New York Times (March 16, 2014) noted that the McConnell campaign posted the footage “hoping to provide a friendly ‘super PAC’ with high quality images of Mr. McConnell to use in ads.”  Indeed, the most credible explanation for why the McConnell campaign posted on the Internet a video compilation of wordless footage of Senator McConnell is that the campaign was seeking to encourage and facilitate the republication of the video footage in a campaign ad by an outside spender, such as KOC.

The letter concluded:

Thus, a serious question exists under the campaign finance law as to whether the actions the McConnell campaign took to prepare and post the footage, and in so doing to encourage and facilitate republication of the footage, rose to the level of making a “request or suggestion” that the campaign’s footage be republished by KOC for use in its ad.

If it did, then the republication of the McConnell campaign footage by KOC is both an illegal in-kind contribution made by KOC and an illegal in-kind contribution accepted by the McConnell campaign.

The campaign ad being run by KOC violates the campaign finance law and KOC should stop running the ad immediately.

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